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Two ways Democrats can remove Kavanaugh — without impeaching him

Impeachment would be a hyperpartisan spectacle. But it’s not the only disciplinary option.

President Trump stands with Supreme Court Justice Brett Kavanaugh before a ceremonial swearing-in at the White House on Oct. 8. (Susan Walsh/AP)

By Aziz Huq

Aziz Huq is the Frank and Bernice J. Greenberg professor of law at the University of Chicago. He is co-author, with Tom Ginsburg, of the forthcoming book "How to Save a Constitutional Democracy."

October 17

Before Supreme Court Justice Brett M. Kavanaugh was sworn in, critics were calling for his impeachment. The political polarization over allegations that he had assaulted Christine Blasey Ford when they were teenagers doesn’t show much sign of abating.

Impeachment is a polarizing process itself, though, one that even many Democrats appear uneasy about pursuing if they win control of Congress in next month’s elections. Without a two-thirds majority in the Senate, impeachment would be doomed to fail, anyway. But a Democratic Congress and a future Democratic president could still remove Kavanaugh from the Supreme Court if they wanted without needing to impeach him. There are two other ways to kick a sitting justice off the court — neither of which requires a supermajority.

In the first, a new president would nominate and the Senate would confirm by majority vote a justice — in this case Kavanaugh — to a different post on an intermediate court of appeals (say the D.C. Circuit, where Kavanaugh formerly served). The justice would, in effect, be demoted.

The move is admittedly unprecedented at the Supreme Court level. But it finds support in an 1803 Supreme Court case called Stuart v. Laird. The fading Federalist Party of John Adams had created 16 new federal judgeships in 1801 — in part to spare Supreme Court justices from having to “ride the circuit” and hear regional appellate cases. Thomas Jefferson’s Democratic-Republicans triumphed at the polls and abolished the new positions in 1802. A litigant who had a case before one of those defenestrated judges sued.

The Supreme Court unanimously rejected his challenge. Critically, the court also explicitly upheld part of the Democratic-Republicans' intervention that forced justices to sit as appellate judges against their will.

The Stuart decision reflects Congress’s broad power to structure “any Department,” including the federal courts. Stuart also suggests that individuals have no vested right to a particular set of judicial duties. That principle was applied in Stuart to Supreme Court justices. And it is hard to see why justices can be required by statute to sit on a circuit court some of the time but not all of the time (which would be the case if Kavanaugh were effectively demoted).

However satisfying to Democrats in the short term, an exercise of the Stuart power would create a destabilizing precedent. It’s easy to imagine any change in party control of Congress and the courts leading to dramatic changes in federal court personnel.

That brings us to the second alternative method of relieving a justice of his or her duties. In a 2006 article in the Yale Law Journal, two scholars (conservatives, as it happens), Saikrishna Prakash and Steven D. Smith, amassed historical evidence that the Framers understood the “good behavior” standard to be judicially, rather than just politically, enforceable.

They pointed out that judicial removal proceedings were used in English law in the 1780s, and were included in the New York, South Carolina and Massachusetts pre-1787 constitutions. Moreover, they noted, “good behavior” was included by the Continental Congress as a standard in the 1787 Northwest Ordinance for courts in the territories — before there were a separate House and Senate to conduct an impeachment.

As (roughly) proposed in the Yale article, Congress could pass a statute authorizing a specially constituted bench of federal judges — say, five randomly drawn judges — to determine whether a particular judge (here, Kavanaugh) had violated the “good behavior” standard. That special bench could hold a hearing and, if convinced by the evidence, make the requisite finding to trigger exit from the bench. This approach wouldn’t require a congressional supermajority. It would need a presidential signature.

Current federal law contains a trace of this mechanism. When a judge is convicted of a felony, whether in state or federal court, the law now states that he or she “shall not hear or decide cases” unless a council of judges decides otherwise. To be sure, the judge keeps a salary in the interim. But the judge is effectively sidelined — as completely as if he or she were impeached.

The creation of a new vehicle for judicial peer review seems to be the optimal option, as it would create a nonpartisan, procedurally robust device for disciplining judges.

Supreme Court justices right now have no real supervisors when it comes to ethics, and impeachment has come to seem excessively partisan. A standing body, available for all cases of misconduct — not just a ticket for one ride only — would resolve that problem, no matter who the appointing president.

Little good has come from the Kavanaugh confirmation process. But Kavanaugh opponents have a rare chance to push for a positive institutional change as they press their immediate agenda. If the political stars align, something good for our constitutional democracy might result from their efforts: a better way to discipline errant federal judges.